IN THE MATTER OF BOBBY E. PANGBURN, ATTORNEY AT LAW.IDAHO STATE BAR,PETITIONER,v.BOBBY E. PANGBURN, RESPONDENT.

Appeal from the Idaho State Bar Professional Conduct Board Hearing Committee.

The opinion of the court was delivered by: Horton, Justice.

2013 Opinion No. 31

Stephen Kenyon, Clerk

The Committee's recommendation that Pangburn be disbarred effective February 1, 2010, is accepted and adopted by this Court.

This case arises from an attorney's misconduct while representing two clients in Idaho and a subsequent recommendation from the Idaho State Bar (ISB) that he be disbarred. Bobby Pangburn was initially suspended from the practice of law in Idaho on January 31, 2008, for professional misconduct that occurred in Oregon. Before he requested reinstatement, the ISB filed a new complaint alleging misconduct in Idaho. Pangburn and the ISB submitted a stipulation to the Hearing Committee of the Professional Conduct Board (the Committee) recommending further suspension. The Committee recommended that this Court accept the stipulation. This Court rejected the recommendation and remanded the matter to the Committee for "consideration of more significant sanctions." The Committee conducted a new hearing that focused solely on sanctions and determined that disbarrment was appropriate. On review before this Court, Pangburn raises several issues, arguing that the Committee's decision to recommend disbarrment was arbitrary and capricious, that any sanction should run concurrent with his previous suspension, and that this Court violated his due process rights by remanding to the Committee without holding a hearing. We adopt the Committee's recommended sanction of disbarrment.

I. FACTUAL AND PROCEDURAL BACKGROUND

Pangburn was suspended from the practice of law in Idaho on January 31, 2008, as a result of reciprocal disciplinary proceedings stemming from misconduct that occurred in Oregon. Pangburn resigned in lieu of discipline in Oregon, and consistent with the Oregon rules, his resignation did not include an admission that he had violated rules of professional conduct.*fn1 The ISB brought reciprocal disciplinary proceedings in Idaho, which resulted in a five-year suspension, with three years withheld. However, on May 20, 2010, before Pangburn requested reinstatement, the ISB filed a complaint alleging professional misconduct in connection with Pangburn's representation of two Idaho clients, Robert Hall and Robert Illingworth.

These proceeding were not Pangburn's first experience with disciplinary actions in Idaho. In 2001, he was publicly reprimanded by the ISB for violations of the Idaho Rules of Professional Conduct (IRPC), specifically IRPC 1.3 [diligence], 1.4 [client communication], 1.15(d) [safekeeping property], and 8.4(d) [conduct prejudicial to the administration of justice]. In 2003, Pangburn received an informal admonition for a violation of IRPC 1.4. In connection with the Oregon misconduct, Pangburn was found to have committed multiple violations of IRPC 1.2 [scope of representation], 1.3, 1.4, 1.16(d) [duties upon termination of representation], and 8.4(c) [conduct involving dishonesty], and one violation each of IRPC l.5(f) [accounting for fees and costs], and 8.4(d).

The relevant facts regarding Pangburn's representation of Hall and Illingworth follow. Pangburn represented Hall during Hall's prosecution for drug trafficking. Hall ultimately pled guilty to various trafficking charges and admitted to a persistent violator enhancement. He was sentenced to 39 years in prison. Hall, represented by the State Appellate Public Defender's Office, appealed, and his sentence was affirmed. He filed a pro se petition for post-conviction relief. In that petition, he advanced several claims for relief, one of which was ineffective assistance of trial counsel. Even though Hall's petition asserted that Pangburn had previously provided ineffective assistance of counsel, the district court appointed Pangburn to represent Hall in the post-conviction proceedings. Pangburn claims to have informed Hall that there was a conflict of interest because Pangburn had served as Hall's trial counsel. Pangburn testified that Hall orally waived the conflict and consented to the representation. Pangburn did not notify the court of the conflict. He then filed an amended petition for post-conviction relief, removing the ineffective assistance of trial counsel claim. The district court eventually dismissed the remaining claims. A different attorney represented Hall in his appeal from the denial of post- conviction relief, and she requested a remand so that Hall could advance his ineffective assistance of trial counsel claim. The request was granted. On remand, the State and Hall's new attorney stipulated that Hall was entitled to limited post-conviction relief consisting of a hearing on Hall's Rule 35 motion to reduce his sentence. At this point, more than four years had passed from the time Hall's first post-conviction relief petition was filed. In the intervening years, the original sentencing judge had retired. After a hearing, the new judge granted Rule 35 relief and reduced Hall's sentence from 39 years down to 18 years.

Several years after his representation of Hall, Illingworth's mother paid Pangburn $12,000 to represent her son in a post-conviction relief matter. The first $2,000 was a flat fee that covered Pangburn's trip to Orofino to discuss the case with Illingworth. The remaining $10,000 was paid as a retainer for Pangburn's representation in the post-conviction case. Shortly after payment of the retainer, Illingworth terminated Pangburn. His mother demanded that Pangburn return the full $12,000. Pangburn, having performed some work on the case, refused to return the money. On July 31, 2006, Illingworth's mother filed a claim with the Client Assistance Fund (CAF), seeking reimbursement. The CAF held a hearing and on June 27, 2007, determined that Pangburn owed Illingworth's mother $7,280. On February 26, 2008, this Court rejected

Pangburn's challenge to the CAF's findings. Pangburn did not return the money, so the CAF paid Illingworth's mother $7,280 on March 13, 2008. Pangburn has made no reimbursement to the CAF.

The ISB filed a complaint against Pangburn, alleging multiple violations of the IRPC, including those stemming from his representation of Hall and Illingworth. Bar counsel and Pangburn entered into a stipulation, wherein Pangburn agreed to admit certain violations of the IRPC in exchange for an agreed disposition of an additional 36 month suspension, with 18 months withheld, and three years of probation. This stipulation provided that "if the Hearing Committee of the Professional Conduct Board or the Idaho Supreme Court declines to accept this Stipulation and/or Recommendation, each party has the right to withdraw from this Stipulation and proceed to hearing on the merits." After the Committee entered a recommendation for approval of the stipulation, this Court rejected the stipulation, remanding the matter to the Committee "for the reconsideration of more significant sanctions."

Following remand, Bar counsel and Pangburn entered into another stipulation. In this Pre-Hearing Stipulation, Pangburn admitted facts that constituted violations of the IRPC. With regard to Hall, Pangburn admitted that he had violated IRPC 1.3 [Failing to act with reasonable diligence], 1.7(a) [Conflict of Interest], and 8.4(d) [Engaging in conduct prejudicial to the administration of justice]. In his representation of Illingworth, Pangburn admitted that he had violated IRPC 1.16(d) [Failing to return unearned fees upon termination of representation] and 1.15(d) [Failure to keep property separate until the dispute between the lawyer and client was resolved]. The parties agreed that the sole issue for determination by the Committee would be the appropriate sanction for these violations.

The Committee conducted a hearing on April 4, 2011, to determine the sanction that it would recommend to this Court. Pangburn presented mitigation evidence regarding his standing in the community, earning a teaching degree and securing a job as a high school teacher, and his full cooperation during the disciplinary proceedings. The ISB presented evidence in aggravation, including Pangburn's experience as an attorney, prior disciplinary proceedings, and his multiple offenses.

The Committee issued its decision on July 27, 2011, recommending that Pangburn be disbarred. Pangburn filed a Motion to Alter or Amend and Request for Hearing on August 11, 2011. On November 9, 2011, the Committee denied Pangburn's request for a hearing and his Motion to Alter or Amend, but it did recommend that Pangburn's effective date of disbarrment be February 1, 2010.

II. STANDARD OF REVIEW

We recently outlined the standard of review in attorney discipline cases.

In an attorney discipline matter, this Court will examine the hearing committee's decision to determine if it is clearly erroneous or arbitrary and capricious. The misconduct must be proven by clear and convincing evidence. The disciplined attorney bears the burden of establishing that the evidence does not support the hearing committee's findings. It is ultimately the responsibility of this Court to assess facts and to determine appropriate sanctions. Idaho State Bar v. Clark, 153 Idaho 349, __, 283 P.3d 96, 102 (2012) (internal quotations and citations omitted). "The Court gives considerable weight to the findings of the hearing committee; however, the Court is not bound by them." Idaho State Bar v. Frazier, 136 Idaho 22, 25, 28 P.3d 363, 366 (2001). Unlike this Court's review of district court cases,

in an attorney disciplinary action we are guided by different legal principles which require our independent review of the record and assessment of the evidence. In addition, in conducting our independent review and assessment of the record we must apply the clear and convincing burden of proof ...

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